Judicial Campaign Contributions and Spending

A new article by University of Washington Law Professor Hugh D. Spitzer and Philip Talmadge "reviews empirical research by political scientists who have documented the effect of large campaign donations on how judges decide cases and on the public’s perception of court impartiality."

The article, "then proposes a number of actions that state courts and legislatures could take to control judicial campaign spending. First, we recommend that in jurisdictions with inadequate statutory judicial campaign controls, state supreme courts should act forcefully to impose strict caps on both direct and coordinated contributions to judicial campaigns, using the American Bar Association’s Model Code of Judicial Conduct, Rule 4.4(B)(1). Second, we suggest that state codes of judicial conduct should integrate the parallel mandatory disqualification mechanism in the ABA’s Model Code of Judicial Conduct, Rule 2.11(A). Next, we contend that legislatures have sufficient cause under a strict scrutiny test to protect judicial impartiality and the appearance of impartiality by limiting total judicial campaign committee expenditures and controlling independent expenditures by outside groups. Further, we assert that if legislatures fail to act, the courts themselves have sufficient inherent authority to impose those expenditure limits. Finally, we urge states to adopt public funding systems for judicial campaigns, and we argue that the need for judicial impartiality should provide legislatures with sufficient cause to adopt restrictions that would not be constitutionally acceptable in non-judicial campaigns."

Tomorrow's Election for Wisconsin Supreme Court includes National Money for Democratic Candidate

Democrats "aim to turn a race for state Supreme Court into the next nationalized race," according to Politico. President Obama’s attorney general, Eric Holder, is backing Rebecca Dallet, a Milwaukee County circuit court judge. The National Democratic Redistricting Committee, according to Politico,  has invested $140,000 in a digital ad program promoting Dallet, whose opponent is Judge Michael Screnock.

The Wisconsin State Journal reports on the race's final debate 

Judicial Election Campaign Funding

Who Pays for Judicial Races? The Politics of Judicial Elections is a report by Alicia Bannon of the Brennan Center for Justice. The report includes statistics on judicial campaign finance and is written from the Brennan Center's progressive perspective that opposes judicial elections.

Montana Supreme Court Election

As is often true of contested judicial elections around the US, the Montana Supreme Court race between Dirk Sandefur and Kristen Juras involved a funding battle between businesses and the trial lawyers who sue them. According to the Montana Standard,

More than $1.1 million has been raised by Juras, Sandefur and organizations supporting their campaigns, according to state campaign finance records. The Republican State Leadership Committee’s Judicial Fairness Initiative, a DC-based political group funded primarily by large corporations, has bought ads to attack Sandefur, while various political action committees of the Montana Trial Lawyers Association have lined up to oppose Juras in what could be another record-setting fundraising year.

Sandefur won the election.

Democrats Win Penn. Supreme Court With Money From Unions and Trial Lawyers

The Daily Call reports two of three open seats "were open because of the resignations of disgraced former justices: in 2013, a Republican convicted of using her taxpayer-paid staff to do political work and, in 2014, a Democrat implicated in the porn email scandal. The other seat became vacant when former Chief Justice Ronald Castille was forced to step down last year after reaching the mandatory retirement age of 70."

All three seats on the Pennsylvania Supreme Court went to Democrats after six years Republicans  controlling the court. "The Democratic takeover was fueled by cash provided largely by organized labor and Philadelphia trial lawyers to help sustain TV advertising. Of the record $11.5 million contributed to the seven candidates, Democrats raised three times as much as the Republicans." The Daily Call reports.

The Atlantic's Tyler Bishop bemoans the Pennsylvania Supreme Court's politicization and scandal, but points out "allowing citizens to directly elect judges makes the process more democratic, allows people to engage key issues before the court, and holds judges accountable for their interpretations of the law."

Wisconsin Supreme Court Campaign Funding

Today's New York Times complains:

"According to the Wisconsin Democracy Campaign, Wisconsin Manufacturers & Commerce spent about $5.6 million to support the election of Justices Annette Ziegler, Michael Gableman, David Prosser and Patience Roggensack. The Wisconsin Club for Growth spent about $1.8 million to help elect those justices, while Citizens for a Strong America spent almost $1 million to elect Mr. Prosser.

This should not be a hard call, but under a pitifully weak rule in Wisconsin’s code of judicial conduct, judges do not have to recuse themselves over independent spending related to their campaigns."

Judicial Campaign Contribution Buys Outcome of a Case

An Arkansas trial judge pled guilty to reducing a negligence verdict from $5.2 million to $1 million in exchange for contributions to his election campaign for appellate court.

Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. the Florida Bar

Williams-Yulee v. The Florida Bar, will be argued before the Supreme Court this week: January 20, 2015.

My new article, Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. the Florida Bar, in Vanderbilt Law Review En Banc, Vol. 68, 2015, is part of a Roundtable including several thoughtful articles. My abstract:

 At the level of constitutional law, Williams-Yulee is a First Amendment case about judicial campaign fundraising. The First Amendment issues raised by judicial campaigns and money in politics are vital, and they are not the only issues implicated by Williams-Yulee. Williams-Yulee also implicates broader questions about how judicial election campaigns should be funded and ultimately whether to have judicial elections at all. I bring to Williams-Yulee a longstanding interest in a wide range of legal and policy issues surrounding judicial selection, including issues surrounding the extent and implications of correlations between judicial campaign contributions and judges’ rulings. Williams-Yulee seems an opportune time to reconsider my and others’ longstanding concerns about judicial elections.

Publicly-Financed Judicial Campaign in New Mexico

The Albuquerque Journal reports the first Republican to be elected to a state appellate court in 12 years is also the first publicly financed candidate to be elected to an appellate court since public financing became available to statewide judicial candidates in 2008.  It was the first time both candidates in a contested appellate court race opted to fund their campaigns with public rather than private dollars.  "Only candidates in partisan elections for the appellate courts are eligible for public financing. Not eligible are judges who have been previously elected and are running in retention elections, in which voters cast “yes” or “no” ballots on keeping them on the bench."

Montana Supreme Court Election Most Expensive on Record

The NY Times reports on the "most expensive judicial race on record in Montana."  According to the Times, "conservative groups have spent about $640,000 — $469,000 by a political action committee financed by the Republican State Leadership Committee and $170,000 by Americans for Prosperity".  "In response, a political action committee financed largely by Montana trial lawyers and unions has spent $475,000."

The big picture: "Corporate interests, who say they are trying to preserve jobs and create growth, and trial lawyers, who say they represent the voiceless against the wealthy and powerful, have long gone head to head in judicial elections."

Campaign Finance Law for Judicial Retention Elections

Kansas does not require financial disclosures by groups seeking to influence retention elections, according to ProPublica.

"'soft on crime' attack ads are often the best means of removing from office justices they oppose"

Emory Law Professors Joanna Shepherd and Michael Kang, published by the progressive American Constitution Society (a progressive organization), write "as television advertising in a state goes up, state’s judges are more likely to decide criminal appeals against criminal defendants. The analysis also demonstrates that Citizens United exacerbated the influence of money in judicial elections influence on judicial decision making. In the 23 states that had bans on corporate or union independent expenditures, Citizens United’s lifting of these bans is associated with a decrease in justices voting in favor of defendants."

Unconstitutional to Forbid Judicial Candidates from Soliciting Campaign Contributions?

Is it constitutional to prevent candidates in judicial elections from personally soliciting campaign contributions?  The Supreme Court may tell us when it rules in Williams-Yulee v. Florida Bar.

Idaho Supreme Court Election

Results of one contested and one uncontested race.

Op-ed says:

Liberal think tank, Center for American Progress, recently graded the ethics laws governing judicial elections in each state. Idaho, and most of the other 39 states with elected judges, got an “F” because state code doesn’t consider cases involving a one-time political backer an automatic reason for recusal, an issue that the American Bar Association has repeatedly blasted. Idaho’s judicial election ethics policy scored the lowest on the organization’s list. That’s especially interesting when you consider a record $33.7 million was spent on judicial elections in the United States in 2012, reports the Washington Post.

NY Times Covers Outside Campaign Spending in Judicial Races

The paper of record shows a photo of a North Carolina Supreme Court justice carrying campaign signs across the street.  For many of us that's an settling image, which is probably what the NY Times intended, as it's no fan of judicial elections.  For others, I suppose it's a positive image of the powerful being subject to democratic accountability.

The NY Times writes
"Judges on higher courts are elected rather than appointed in 22 states, and in 16 more they must face retention elections at some point after their selection, according to Justice at Stake, an advocacy group in Washington. Corporations and political parties — and trial lawyers and unions — seek ideologically compatible state judges, legal experts say, because their rulings can affect redistricting and laws on such key issues as liability, medical malpractice and workers’ compensation."

More on the NC races' campaign funding here

More on the NC races here

More Money for NC Supreme Court Races

Justice at Stake says The Republican State Leadership Committee announced that its Judicial Fairness Initiative would fund conservative judge candidates who have conservative ideologies.

In North Carolina, a group called Justice for All NC has received $650,000 from the Republican State Leadership Committee and has begun airing a TV ad critical of Justice Robin Hudson.

Campaign Spending for North Carolina Supreme Court Tops $1 Million

The North Carolina Supreme Court primary on May 6 features incumbent Justice Robin Hudson against challengers Superior Court Judge Eric Levinson and Jeanette Doran in the three-way primary.  The top-two will be on the general election ballot in November. 

The of $1 million includes spending by candidates and by independent groups. Bert Brandenburg of Justice at Stake says "“What compounds the problem this year is that North Carolina has just done away with its public financing program for judicial elections."

Big Money Democrats Fund Republican Candidates for Texas Supreme Court

According to Patricia Kilday Hart in the Houston Chronicle plaintiffs' trial lawyers are "raising campaign cash for a slate of Republican primary challengers to incumbent Texas Supreme Court justices, drawing largely on traditional Democratic donors."  Why would these big money Democrats fund Republicans?  "[S]ince 1994, no Democrat has been elected statewide in Texas."

The primary challengers and incumbents are: former Rep. Robert Talton vs. Chief Justice Nathan Hecht; lawyer Joe Pool Jr. vs. Justice Jeff Brown; and Appeals Judge Sharon McCally, who is challenging Justice Phil Johnson.

Patricia Kilday Hart in The Houston Chronicle reports: "Gov. Rick Perry sent an email this week supporting Hecht, Brown and Johnson, whom he appointed to positions on the court. He warned that 'liberal personal injury trial attorneys ... want to buy judges who would return Texas to the bad old days of Jackpot justice - huge and senseless jury verdicts that will bankrupt companies, take away jobs and ruin our economy.'"

Texas Judicial Elections Criticized by Newspaper

TheAustin American-Statesman editorializes: “The partisan election of judges is one of the more negative facets of state government, and for decades there have been attempts to change Texas’ judicial election system. We long have supported efforts to take party politics out of judicial elections and to reduce the effect of campaign money on the state’s courts.”

It goes on “Texas is one of only a handful of states that hold partisan judicial elections. Several potential reforms have been explored …..  A perennial and favored proposal is to appoint judges based on merit and then to require them to go before voters a few years later in a nonpartisan, yes-or-no retention election.”  Of course, the devil is in the detail of who gets to “appoint judges based on merit” when reasonable people disagree about which potential judges are more meritorious.   

Caperton and Money in Judicial Races

After teaching the Caperton case, Stetson Law Professor Ciara Torres-Spelliscy asks "whether electing judges with private funds makes for a respectable and functional justice system."  One of her answers "more than any other elective office, judicial elections would benefit from public financing."